In a significant verdict, the Supreme Court on Wednesday held that the house of a person accused or convicted of a crime cannot be demolished by State authorities citing the criminal background of the concerned person and such bulldozer action is illegal and unconstitutional [In Re: Directions in the Matter of Demolition of Structures].

A Bench of Justices BR Gavai and KV Viswanathan held that State authorities cannot determine the guilt or innocence of an accused person and demolish the house of such person as punishment. The responsibility to determine the guilt of a person and punish him vests with the judiciary, the Bench said.

"If a property is demolished only because person is accused, it is wholly unconstitutional. Executive cannot determine who is guilty and cannot become a judge to decide if he is guilty or not and such an act will be transgressions of limits. The chilling side of bulldozer reminds that constitutional values and ethos do not allow such abuse of power," the Court said.

Pertinently, the Court held that such bulldozer action also cannot be against someone who is convicted of a crime too since such an action by the executive will be illegal will amount to taking the law into their own hands.

Further, demolishing the house of a person also affects the right to shelter under Article 21 of the Constitution and also becomes a collective punishment against the family members of such accused person, the Court noted.

"Construction of a house is an aspect of socio-economic aspirations and is just not a property but symbolizes years of struggle and it gives a sense of dignity and if this right is taken away, then the authority has to satisfy that such a measure was the only last resort available. The settled principle of criminal jurisprudence is that accused is innocent till proven guilty and if the structure is demolished, then it is collective punishment on all family members which cannot be allowed under the Constitution," the Court said.

Right to shelter and depriving innocent of such a right will be wholly unconstitutional, the Bench underlined.

"When a structure is suddenly selected for demolition while others remain, then mala fide is writ large and presumption could be drawn that action was not to bring down the illegal structure but to penalise the person before a court of law does so," Court noted.

Therefore, the Court held that public/ government officials responsible for such illegal and arbitrary actions should be made liable including by way of compensation.

Towards this end, the Court said that it has laid down binding guidelines to be followed by the State.

"Public officials who take law into their hands should be made accountable of high handedness. We have laid down binding guidelines which shall be followed by state officials in such cases. We have noted that even accused has certain right and safeguards, State and officials cannot take arbitrary action against accused or convicts without following due process of law, when an official is held liable for arbitrary action there has to be institutional mechanism to deal with it - one could be compensation. Such officials cannot be spared for mala fide exercise of power," the judgment said.

The Bench held that while the State has the obligation to maintain law and order and take action against law breakers, there cannot be an arbitrary exercise of such power by the State and property of an individual cannot be arbitrarily taken away from him.

"When citizen has broken the law, the court has cast obligation upon State to maintain law and order and protect them from unlawful action. Failure to adhere to this can erode public confidence and can give way to lawlessness. However, protecting individual liberty is important for upholding constitutional democracy. We have held that arbitrary exercise of state power needs to be reigned in so that individuals know that their property shall not be taken away arbitrarily from them," the Court said.

The Court also made it clear that the executive cannot replace the judiciary when it comes to deciding the legality or illegality of a property. Hence, it will be unjust of government authorities demolish properties of a person accused of crime without following due process of law

"State cannot replace judiciary in performing core functions and will be wholly unjust if State demolishes such properties without following due process of law. If the executive in an arbitrary manner demolishes property of a person only on the basis that person is accused of crime it violates separation of powers," the Bench ruled.

The judgment came in a batch of petitions raising grievance against Central and State governments bulldozing homes or shops of accused in criminal proceedings as an extra-legal punitive measure.

Earlier, the Bench as an interim measure had banned authorities from demolishing properties of those suspected of criminal activities, without first seeking the Court's permission.

The Court had then heard the matter and reserved its verdict on October 1.

Directions to curb Bulldozer Justice 

The Court today issued the following directions aimed at curbing such 'bulldozer justice.' 

1. If order of demolition is passed then time has to be given to appeal this order.

2. No demolition is permissible without show cause notice. The notice is to be sent by registered post to the building owner and pasted outside the structure that is proposed to be demolished. At least 15 days from the date of notice and 7 days after the notice is served must be given before any further action is given.

3. The notice shall contain details of the nature of violations that led the authorities to propose demolition, the date on which a personal hearing for the affect party is fixed and before whom (which authority) it is fixed.

5. After the notice is served, intimation of the proposed action is to be sent to the Collector and District Magistrate (DM).

6. The Collector and DM are to appoint nodal officers in charge of demolition, etc. of municipal buildings.

7. A designated digital portal is to be provided where details of such notice and the order passed is made available

8. After personal hearing before the concerned authority, minutes shall be recorded. Once a final order is passed thereafter, it should answer if offence of constructing the unauthorised structure is compoundable. If only a part of the structure construction is found non-compoundable, it has to be examined why the extreme step of demolition is the only answer.

9. Orders passed (on determining whether demolition is required) shall be displayed on digital portal.

10. Opportunity must be given to the owner to demolish or remove the unauthorised structure within 15 days of the order and only if appellate body has not stayed the order, the steps of demolition shall take place

11. Demolition proceedings are to be videographed. The video recording is to be preserved.

12. A demolition report is also to be forwarded to the concerned municipal commissioner.

The Court warned that if these directions are flouted, the officials responsible will be liable for contempt of Court and prosecution. Such officers shall be held liable to restitute the demolished property at their own cost and also pay compensation, the top court said.

The Court further made it clear that these directions do not impact action take against illegal buildings or structures on roads, river banks etc.

These directions are to be forwarded to the Chief Secretaries of all States and Union Territories, the Court added.

Solicitor General (SG) Tushar Mehta appeared for the States of Uttar Pradesh, Gujarat and Madhya Pradesh.

Senior Advocates Abhishek Manu Singhvi, CU Singh, Sanjay Hegde, MR Shamshad and Advocates Nizam Pasha and Anas Tanwir appeared for the affected parties.

Advocate Vrinda Grover appeared for the United Nations Special Rapporteur on Adequate Housing.

Recently, another bench of the Supreme Court headed by former Chief Justice of India had held that bulldozer justice is unacceptable in a society governed by rule of law.

[Read Judgment]